Court File and Parties

Ontario Court of Justice

Date: 2018-01-30

Court File No.: North Bay 15-1987

Between:

Her Majesty the Queen

— and —

Austin Acton

Before: Justice A.L. Guay

Heard on: May 4, 5, 2017

Ruling on (Voir Dire) Charter Application

Counsel:

• Russell Wood, counsel for the Crown
• Austin Acton, Self-Represented

Guay J.:

Overview

[1] The accused was charged with impaired driving, driving with an illegal blood alcohol level and three breaches of recognizance (on October 23, 2015). The breach of recognizance was with respect to a domestic assault matter and contained a proviso that the accused was not to purchase, possess or consume alcohol.

[2] The accused was arrested at 11:55 a.m. on October 23, 2015 and brought to police headquarters in North Bay at about 12:08 p.m. When asked if he wished to speak to a lawyer, he indicated that he wanted to speak to Jeff Laplante, a lawyer practicing criminal law in North Bay. The police were unable to reach Mr. Laplante. As a result, legal aid duty counsel was called on the accused's behalf. The accused spoke to duty counsel between 12:40 p.m. and 12:44 p.m. At 1:15 p.m., the accused was given his first breath test. His two breath samples produced readings of 253 mg. and 260 mg. respectively.

The Evidence of Cst. Alain Bedard

[3] Cst. Bedard spoke well of the accused. He described him as being very polite and very cooperative. Cst. Bedard prepared the accused's release documents. The accused was advised by officers checking in on him throughout the afternoon of October 23, 2015, that he was soon going to be released. Both Cst. Bedard and Cst. Adair were initially of the opinion that the accused would be released after he had sobered up sufficiently to permit his safe release. Cst. Bedard thought that this might occur later that evening, given what he understood to be an alcohol expulsion rate of 15 mg. per hour. This is consistent with the accused's belief that his release was not far off once the paperwork related to his impaired driving and breach of recognizance charges had been completed.

[4] Cst. Bedard spoke to the accused's mother when he returned to work around 7:00 a.m. the next morning, October 24, 2015. He recalled that after speaking with her, he satisfied himself that the accused was not the holder of a gun licence. It is of note here that Cst. Bedard had access to a telephone number at which the accused's mother could be reached. Presumably, if the need to have a responsible person attend at police headquarters to take charge of the accused upon his release was an issue, the accused's mother could have been called to come and get him. This could have occurred on October 23, 2015 and not later on October 24, 2015 as happened. The availability of this telephone number to Cst. Bedard confirms that it was available to other officers in the North Bay Police Service.

[5] The same can be said with respect to Gelyn Foyston, the accused's former secretary. She was available to come and get the accused and the police had the ability to contact her during the afternoon of October 23, 2015. Gelyn Foyston had made it known to more than one officer (Cst. Shank around noon on October 23 and the afternoon Desk Sgt. on the same date at about 2:00 p.m.) that she was ready to come and get the accused.

Cst. Randy Adair

[6] Cst. Adair confirmed that initially the intention was that the accused was to be released after he had sobered up. It appears, however, that after acting Staff Sgt. Brewer's arrival later in the afternoon at police headquarters and after he had reviewed the recognizance binding the accused, the decision was made to hold the accused for WASH court the next day. Cst. Adair identified the officer making that decision as acting Staff Sgt. Brewer.

Evidence of Acting Staff Sgt. Paul Brewer

[7] In R. v. Sawatsky (1997), 35 O.R (3d) 767; 118 C.C.C., (3d) 17; 150 D.L.R.(4th) 750, the Court addressed the issue of whether after being initially advised of the right to counsel, it was necessary for the police to re-advise someone with respect to these rights if he or she was being charged with further offences. Writing for the Court, Doherty J.A. noted that foremost among the obligations placed on the police by s.10 (b) of the Charter was the obligation "to tell a detained person without delay that she has a right to speak with a lawyer." This obligation was placed on the police, he stated, so an accused person could decide whether to exercise his or her right to counsel before any further interaction with the police. Referring to the Supreme Court of Canada's decision in R. v. Bartle, [1994] 3 S.C.R. 173, Doherty J.A. explained that to make the right to counsel meaningful "the detained person must be in a position to make an informed decision as to whether to seek counsel's assistance". To do so, he said, "the detained person must at least know why she is detained and why the police wish to question her or involve her in some other investigative process...". An individual can only exercise his s. 10(b) rights in a meaningful way, he continued, "if he knows the extent of his jeopardy". "Jeopardy in this context", he explained, "includes the detained person's risk of self-incrimination". That risk, he stated, cannot be measured without knowledge of the reason for the detention and the subject matter of the police inquiries". Knowledge of the purpose of the detention was, he said, "so important to the informed exercise of the right to counsel that the police are constitutionally required by s. 10(a) of the Charter to promptly inform a detained person of the reasons for her detention. Where there is more than one reason for her detention, they must all be disclosed: R. v. Borden, supra, at p.165 S.C.R., p. 419 C.C.C. (see p.13); (paras 26-29.)

[8] Acting Staff Sgt. Brewer had a different view about the accused's release, particularly after speaking with the complainant whom the conditions in the accused's recognizance were allegedly meant to protect. Acting Staff Sgt. Brewer testified that at some time, probably a couple of hours after he came on shift at 5:45 p.m., he attended at the accused's cell to inform him that he was being charged with two new offences and was going to be held over for WASH court the next day, October 24, 2015. Acting Staff Sgt. Brewer also testified that when he went to the accused's cell to inform him that he was not being released, he offered to put the accused in touch with criminal lawyer Jeff Laplante. Very stressed by this point in time, the accused told acting Staff Sgt. Brewer that he did not want to speak with Jeff Laplante. The accused seemed to have lost any enthusiasm he had about consulting this lawyer. More importantly he was not afforded an opportunity to choose another lawyer.

[9] It is here, I believe, that acting Staff Sgt. Brewer's failure to appreciate the accused's s.10 (b) Charter rights is clearly evident. Having decided to detain the accused, it was incumbent upon him to properly explain to the accused the connection between his continued detention and the new breach of recognizance charges against him and to offer him an opportunity to speak to a lawyer of his choice. This exchange between the officer and the accused appears to have been brief, one-sided and highlighted by both the accused's puzzlement and his resignation at what was happening to him. While the accused was not ordered to be detained following the bail hearing on the morning of October 24, 2015, this could well have been the result of that proceeding. As it was, the conditions placed on his release certainly and foreseeably resulted in his further and unwarranted detention. The accused clearly did not appreciate the increased liability he was placed under as a result of the two new breach of recognizance charges. I accept the accused's evidence that he did not understand the possible ramifications of the two new breach of recognizance charges when told about them by acting Staff Sgt. Brewer. It did not seem to occur to the officer that his actions had resulted in the accused's liberty being placed in greater jeopardy.

[10] This violation of the accused's s.10 (b) Charter rights led to the more serious violation of the accused's s. 9 Charter rights. By virtue of his continuing detention at police headquarters in the late afternoon of October 23, 2015, and being held over for WASH court the next day, the accused was unable to pursue his right to counsel of choice at that time, being wholly dependent on respect for his Charter rights by those detaining him. His inability to exercise those rights was quite obviously also impeded by his inability to access the medication which he needed to calm his serious anxiety and reduce his adverse physiological response to being denied his alcohol-related and other medication. The accused had alerted the police officers with whom he dealt during the course of his detention to his need for this medication but to no avail. Because he did not, in the view of the North Bay police, appear to be in a delirious or traumatized state, they were content to let him sweat it out, which in the end he did, but not before experiencing a lot of emotional distress and personal suffering.

[11] As noted earlier, Cst. Adair testified that the call not to release the accused was made by acting Staff Sgt. Brewer. This decision seems to have been taken once the two additional breach of recognizance charges were brought against the accused on October 23, 2017. I find the motivation for bringing these additional charges suspicious, given that the earlier position to release the accused had been taken with full knowledge of the terms of his outstanding recognizance.

[12] Acting Staff Sgt. Brewer testified that the officers who had earlier dealt with the accused's matter had not realized that his recognizance related to a domestic assault charge. In his opinion, it was in the best interests of all to hold the accused over for WASH court the next day. As also noted earlier, acting Staff Sgt. Brewer testified that he had spoken with the victim to whom the recognizance related at about 8:10 p.m. on the day the accused was arrested and charged with impaired driving. He testified that he was not "comfortable" with releasing the accused. In admitting that it was his decision to detain the accused, he stated that this is what felt he "felt" and what he told the accused at the time. Interestingly, acting Staff Sgt. Brewer noted that even if there had been a third party available to care for the accused upon his release, he still would have held him for bail the next day. He stated that if he had to reconsider the matter, he would not come to different decision. Discretion in legally-related decisions must however, be exercised on a rational, legal basis. Acting Staff Sgt. Brewer did not offer to the court any reasons for exercising his discretion to keep the accused in custody other than his feeling and comfort level. In this respect, I find his decision was unacceptable and in contravention of the accused's s. 9 Charter rights. Additionally, acting Staff Sgt. Brewer's decision failed to respect the directive contained in s. 498 of the Criminal Code that an accused is to be detained in custody only if the officer ordering this is doing so on reasonable grounds in the public interest or for some other purpose set out in that section of the Code. The officer's testimony was far from establishing that there were reasonable grounds for detaining the accused. The accused was not out of control in his police cell or threatening to anyone with whom he was in contact, least of all the person whom his outstanding recognizance was meant to protect. Notwithstanding his alcoholism, the accused remained a principled and peaceful individual who was arrested for breaching an alcohol-related condition and not for representing a threat to his alleged victim.

The Evidence of Gelyn Foyston

[13] There was evidence that the accused's former legal secretary, Gelyn Foyston, notified Cst. Shank, one of the officers present at the arrest of the accused, about her willingness to assist the accused upon his release. She testified that when she arrived on the scene of the accused's arrest on the morning of October 23, 2015, she told Cst. Shank that she would wait for the accused to be released. She also testified that she gave Cst. Shank a yellow sticky note with a telephone number on it where she could be reached. Cst. Shank testified, however, that he did not recall receiving such a note from Gelyn Foyston. Given her evidence in this matter, I am satisfied that Gelyn Foyston did do this even if the officer forgot she had done so.

[14] As of late afternoon on October 23, Gelyn Foyston eventually returned home to Field, Ontario (a village outside of North Bay) after she was unable to get the information she needed about the accused's release. Prior to leaving North Bay, she alerted the accused's mother, a resident of Kirkland Lake, Ontario about his predicament.

[15] The accused's mother, Christine Acton, was informed by the police that he was being held over for bail on Saturday morning, October 24, 2015. While she would later sign as his surety on his release from custody, she was unable to be physically present at the bail hearing. She drove to North Bay from Kirkland Lake on October 24 and attended at North Bay police headquarters to sign as a surety on his release. The accused's release took place at about 6:45 p.m. that day. At that time, the accused had been in custody for more than 30 hours that is from 11:55 a.m. on October 23, 2015 until approximately 6:45 p.m. on October 24, 2015. Technically, all things being equal, the accused should have been released shortly after the completion of his breath tests and the paperwork associated with them at about 3:00 p.m. on October 23, 2015.

The Accused's Evidence

[16] The accused testified at the voir dire about the apparent hostility of acting Staff Sgt. Brewer towards him. He spoke about the heightened level of anxiety he experienced because of his prolonged detention and about his unheeded cries for help while alone in the North Bay police cell block. His anxiety was very high, he maintained, given that he had not had access to his medication on the day of his arrest. He insisted that he made his condition known to the officers who were in contact with him, only to be referred to the Staff Sergeant. He alleged that acting Staff Sgt. Brewer made negative comments about him and treated him in a disdainful manner. The accused did admit to being intoxicated and, as a result, having gaps in his memory about what either happened to him or what was said to him while he was under detention. The accused also spoke of the prolonged period of psychotherapy required by him following his release, noting that he required such therapy in order that he might subsequently hold down a job. Notwithstanding the marked difference between his perception about how acting Staff Sgt. Brewer treated him as opposed to the positive contact he had with the other officers who dealt with him, I am unable to conclude that acting Staff Sgt. Brewer exhibited any overt hostility towards the accused, even if the accused sensed that acting Staff Sgt. Brewer's decision to hold him for WASH court was based on a negative view of him and his conduct. Not to be forgotten here is the accused's evidence that acting Staff Sgt. Brewer told him to "Blame me!" for the decision to hold him over to WASH court the next day. Why would the officer have said such a thing if he did not feel some concern about the decision he had taken? If his decision was a legitimate one, then why would the issue of "blame" have arisen in his mind? I accept the accused's evidence on this point, singular as the officer's remark was.

Analysis

[17] It was clear from the evidence of the officers who testified in this matter that there is a policy in Ontario initiated by the Ontario Provincial Police and adopted by some local police forces to detain drivers who have been found to have a high blood alcohol reading until they have sobered up sufficiently to be released. The courts have spoken about this policy and criticized its use if there are no factors supporting the detention of an accused person other than that of legal impairment. As noted, s. 498 of the Criminal Code mandates the speedy release of persons charged with certain offences (this would include the offence of impaired driving), barring factors such as the public interest. I find that the accused was held much longer than was reasonable, arguably as long as 16 hours more than was required to charge and legally process him. This detention was not in compliance either with section 9 of the Charter of Rights and Freedoms or with the statutory obligation to release detained individuals pursuant to s.498 of the Criminal Code.

[18] I am troubled by the decision of acting Staff Sgt. Brewer of the North Bay Police Service to bring two further breach of recognizance charges against the accused late in the afternoon or early evening of October 23, 2015 arising from the same recognizance as the one giving rise to the initial breach of recognizance charge, particularly when other presumably well-trained and knowledgeable officers earlier chose not to do so. It is reasonable to infer that they did not make a link between the breach of recognizance and danger to the person respecting whom the alcohol-related conditions in the recognizance were meant to protect. The reasonable inference can be made that they were aware of the terms of s.498, particularly s. 498(1.1) (a) (iv), of the Criminal Code. To argue that the decision of acting Staff Sgt. Brewer was made necessary by the oversight of police officers on the previous shift is questionable. Acting Staff Sgt. Brewer failed to assess the reasonableness of the decision made by the arresting officers and gave more weight to his own feelings than to their considered action decision. Nothing in the events or circumstances surrounding the accused's arrest suggests that the person protected by the terms of the recognizance was or would as a result of the accused's release be in any danger. What brought the accused into custody was his intoxication, not his threatening behaviour towards the person whom the conditions of the recognizance were designed to protect. Any nexus between the terms of the recognizance and danger to a third party was remote given the fact that the accused's vehicle had been impounded and the complainant was no longer residing in his home where, I believe, she had previously resided. The officers on day shift on October 23, 2015 understood what they saw and were not concerned by a nexus between the offence they were dealing with and protection of a third party. The accused was seen to be cooperative and polite by the officers who dealt with him. He was clearly not behaving like a drunken lout or a threatening person before, during or after his arrest by the police. The arresting officers were qualified and experienced officers who saw the situation for what it was, their sobering up policy notwithstanding. Cst. Bedard thought that after the accused had sobered-up later that evening, he would be released providing someone was available to step forth and take charge of him. This was his expectation as it was initially Cst. Adair's expectation.

[19] I do not sense that acting Staff Sgt. Brewer truly appreciated the obligation he was under to release the accused as soon as practicable unless he had reasonable cause not to do so in the public interest or for any of the ancillary purposes outlined in s. 498 of the Code. Given the circumstances of the accused's arrest, the fact that he had not been threatening anyone, that his vehicle had been impounded and that there was at least one if not two persons ready, willing and able to assist him upon his release either the afternoon of his arrest or later that evening, acting Staff Sgt. Brewer's decision was not a reasonable one. In offering to call Jeff Laplante for the accused when he attended at the accused's cell to tell him why he was being detained, acting Staff Sgt. Brewer was presumptuous in offering the accused the opportunity to consult counsel who was not of his choice, he assuming that this would be sufficient in the circumstances.

[20] There can be no justification for keeping someone in custody well beyond the ordinary time required for the purposes consequent upon that person's arrest. Once an accused person is in the custody of the police, respect for his Charter rights lies wholly in the hands of the police and contingent on them abiding by the law. I find that the accused's s. 9 and s.10(b) Charter rights, particularly his s. 9 Charter rights, were seriously breached in this matter.

[21] It does not matter that these breaches occurred after the breathalyzer evidence against the accused was obtained. In R. v. Pino, 2016 ONCA 389; 337 C.C.C.(3d) 402; 130 O.R. (3d) 561, the Court addressed the issue of whether a Charter breach occurring after the discovery of challenged evidence could meet the "obtained in a manner ( that infringed or denied any rights or freedoms guaranteed by this Charter )" condition. Applying this condition in s. 24(2) of the Charter, and relying on Strachan, the Court in Pino concluded that this requirement could be met "in an appropriate case". Speaking for the Court, Laskin J.A. noted:

I think the Supreme Court's generous an increasingly broad approach to the "obtained in a manner" requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered. In this case, I accept Ms. Pino's submission that all three Charter breaches found by the trial judge satisfy the "obtained in a manner" requirement in s.24 (2) . They are all "temporarily" and "contextually" connected to the evidence sought to be excluded; and they all occurred in the course of the same transaction: Ms. Pino's arrest." (see paras 48 and 49)

Continuing, Laskin J.A. noted:

So, in Strachan itself, Dixon C.J.C. held that "obtained in a manner" did not require a causal connection between the Charter breach and the evidence. A temporal connection would be enough, so long as it was not too remote and so long as the breach and the discovery of the evidence occur "in the course of a single transaction". Chief Justice Dixon emphasized that the court should look at the "entire chain of events". And there should be no bright line rule; these situations should be dealt with on a case-by-case basis". (see para 52)

Conclusion

[22] Applying these criteria to the present case, it is clear that the conduct visited on the accused by the North Bay Police Service after his arrest, including breaches of his s.10 (b) and s. 9 Charter rights, were temporarily and contextually connected to the taking of his breath samples and that this occurred as part or in the course of a single transaction. It is equally clear that if allowed to stand, evidence flowing from this impugned conduct would bring the administration of justice into disrepute.

[23] The decision whether to exclude such evidence should be made by applying the criteria set out in the R. v. Grant, 2009 SCC 32; 309 D.L.R. (4th) 1; 245 C.C.C. (3d) 1, namely (a) the seriousness of the breach; (b) the impact of the breach on the Charter protected interests of the accused and (c) the interest of society in the case being dealt with on its merits. The court must balance these criteria and exclude impugned evidence if it concludes that its admission will bring the administration of justice into disrepute. I find this to be to the case here.

[24] Even from the start, the arrest of the accused immediately outside his home with two police cruisers present and the failure of the police to assist the distressed accused in retrieving his medicine and turning a deaf ear to his requests to obtain this medicine after he had been in custody for several hours signalled an insensitive attitude towards him on their part. So too was the fact that he was kept in limbo about his release until the latter part of the afternoon on October 23, by which time when he ought to have been already released. He, in fact, demonstrated little indication of impairment and seemed to behave courteously to the police officers with whom he was in contact throughout the day on October 23. His inability to understand the legal jeopardy in which he had been placed by the laying of additional charges against him undoubtedly led him not to insist on speaking with a lawyer in whom he had confidence. This whole situation ought to have been handled more correctly by acting Staff Sgt. Brewer and that latter's actions constituted an infringement of the accused's s.10 (b) Charter rights.

[25] The denial of the accused's s.10 (b) Charter rights led directly into the much more serious s. 9 Charter violation and strongly impacted on his Charter protected interests under it. The accused is a highly educated and, in my view, sensitive person whose overholding led to a lot of distress and personal trauma.

[26] While there is a strong societal interest in trying the issue of the accused's driving impairment on its merits, the advisability of doing so is very much outweighed by the need to protect and vindicate the accused's Charter rights under ss. 9 and 10(b) of the Charter.

[27] As a result of this ruling, the charge of driving with a blood alcohol content of over 80 mg pursuant of s. 253 (1) (b) of the Code cannot be proven beyond a reasonable doubt. There is insufficient evidence to ground it. The accused is therefore acquitted of this charge. For the same reasons, I acquit the accused of the three charges with respect to the alleged breaches of recognizance under s.145 (3) of the Code.

Impaired Driving Pursuant to s.253 (1) (b)

[28] Both the Crown and the accused agree that the evidence on the voir dire would be applied to the trial evidence. Having found that this evidence is unable to establish this charge beyond a reasonable doubt, I acquit the accused of this charge.

Dated at North Bay this 30th day of January 2018

Justice A.L. Guay, Ontario Court of Justice